Signs of the times

State’s policy of favoring American flags over protest banners heads back into court

Cassandra Brown and Amy Courtney believe the state’s removal of their anti-war banners violates their free-speech rights.

Cassandra Brown and Amy Courtney believe the state’s removal of their anti-war banners violates their free-speech rights.

Photo by Kimberly Wild

Cassandra Brown and Amy Courtney have an inside joke around their house. It goes: “Wanna hang a banner today?” Translation: “Wanna do something seemingly inconsequential and then watch it snowball out of control until we’re in way over our heads?”

The two roommates can laugh a little, albeit nervously, about the situation in which they find themselves. But, for the most part, they’re walking wide-eyed into the fight of a lifetime.

Just before Christmas, Brown and Courtney filed a lawsuit against the California Department of Transportation (Caltrans) asserting that the agency had violated their First Amendment rights to freedom of speech. In January, a federal-court judge agreed and granted the women a temporary injunction against Caltrans.

Next Wednesday, October 9, the women face the next bout of their legal battle when Caltrans appeals the injunction to the federal appeals court in San Francisco. The state will argue that Californians have a right to hang American flags by freeways but not to hang signs protesting war.

Eleven months ago, Brown, a 33-year-old Spanish teacher and freelance writer; and Courtney, a 28-year-old organic-farm employee, weren’t thinking about state codes and preliminary injunctions. They were pondering the bombs raining down on innocent Afghans. The fervent jingoism following the September 11 terrorist attacks and lack of critical dialogue regarding the so-called war on terrorism left the women feeling isolated.

“It felt like there wasn’t much being said in the public sphere, not very much dissent,” Brown says. “The question ‘At what cost?’ wasn’t being asked—how we support this war and what are the costs, monetarily, physically, the people in the world dying, domestic opportunity costs, and our civil liberties. I mean, we all were just going along with it.”

On a foggy November morning, the two women left their home in Davenport, a tiny agricultural community nestled along the coast just north of Santa Cruz, with the intent of displaying their contempt for the U.S. bombing raids. On old, white bed linens, the women had painted two simple signs that raised two simple questions. One read, “Are you buying this war?” The second begged the question, “At what cost?”

Driving a borrowed car, they set out to hang their banners from a highway overpass in Scotts Valley. They chose Highway 17—a heavily traveled artery connecting Santa Cruz and San Jose—because in the post-9/11 fervor, an array of stars and stripes and signs supporting New York and the United States had popped up there.

“Seeing the American flags and other things there, it was sort of like a red flag,” Courtney says. “We thought, OK, here’s a forum for expression, other people are doing it.”

They took turns standing on each other’s shoulders to hang the sign reading “At What Cost?” over an eight-foot, chain-link fence atop an overpass. Using jute cord, they carefully secured the sign to the fence.

They planned to hang the other sign from another overpass, but it never got that far. As soon as the women pulled away from the scene, a Scotts Valley Police patrol car passed them. By the time they turned around and returned to the overpass, the officer and their sign had disappeared.

However, an American flag and a sign reading “SC NY,” both remained hanging from the same overpass where the two women had hung their sign.

As they stood looking up at the empty spot where their sign had hung just 10 minutes before, Brown and Courtney’s mission morphed from hanging a couple of anti-war banners into something bigger. The answer to their question, “At what cost?” already had an answer: They felt they were paying with their free speech.

“It seemed like something had changed,” Courtney says. “It’s not about our banner anymore. This is about the First Amendment and them violating our First Amendment [rights].”

Flanked by Santa Cruz attorneys Nathan Benjamin and Dana Scruggs and First Amendment Project lawyer James Wheaton, the women filed a complaint in federal court on December 21 against the Scotts Valley Police Department and Caltrans, claiming that their First Amendment rights had been trampled.

The women’s first hearing was on January 18 in a San Jose federal courtroom. Brown and Courtney sought a preliminary injunction to allow their banners to be hung while the lawsuit proceeded.

During the hearing, Scotts Valley Police officials claimed the banner’s removal was a safety issue, not a free-speech violation. The department’s attorney argued that the bed sheet was flapping in the wind, threatening to fall on the road below.

Caltrans lawyers, however, dusted off an obscure state law they say legalizes the department’s “flags only” policy on state right-of-way. Section 670.5 of the state’s Streets and Highway Codes, written in the 1950s, proclaims: “The Flag of the United States of America and the Flag of the State of California may be displayed on a sidewalk located in or abutting on a state highway situated within a city, if the type of flag holder and the method of its installation and maintenance are not in violation of the department’s rules.”

Throughout the hearing, Caltrans attorney Daniel Weingarten argued that state law allows American flags, but not other banners, to be displayed. In an effort to debunk the plaintiffs’ First Amendment argument, he also attempted to convince the judge that the American flag waves a politically neutral message.

The judge disagreed. A ruling handed down on January 29 by U.S. District Judge Ronald M. Whyte gave Caltrans a choice: Either tear down all flags and banners or allow them all to remain. “Caltrans must enforce its permitting rules and regulations on a content-neutral basis,” he wrote.

The judge and attorneys on both sides begrudgingly agreed that the logical outcome of the injunction would be that Caltrans would choose to remove all flags and signs—a bittersweet victory for the plaintiffs, who wanted to see their message draped alongside the flags. Caltrans banned all banners and flags for 30 days while deciding whether to appeal. Once that decision was made, Caltrans distributed a March 18 internal memo to all Caltrans districts directing them to leave securely fastened flags and banners in place. The department didn’t want to prohibit flags, which the department contends are allowed by state law.

After two orders from Whyte demanding evidence that the agency was complying with the injunction, Caltrans finally entered that policy into the public record on September 4. The department filed with the court a statement by Steve Price, a Caltrans deputy district director, declaring that he and all other Caltrans deputy district directors had been instructed by department counsel to leave up all flags and signs posted on overpasses by private citizens, as long as the banners did not pose a safety risk.

Claiming victory, Brown and Courtney set out September 19 to test Caltrans’ tolerance of its own stated stance. Armed with signs reading “Iraqi War? Grave Mistake,” “U.S. = Rogue State” and “Invest in Caring, Not Killing,” the women once again hung signs from Highway 17 overpasses.

“The declaration by Caltrans is our chance to finally get our message out and finally have the chance to say what we want to say,” Courtney said last week. “And the timing couldn’t be better because we are terribly, terribly concerned about the state of the world and the U.S.’s bully-on-the-block attitude.”

But, less than three weeks after filing Price’s statement with the court, Caltrans pulled an abrupt U-turn and reversed its position. In a two-paragraph statement filed on September 23, Caltrans announced it would remove “any and all banners, signs and flags displayed by private persons” on state highway overpasses.

The amended policy complies with the temporary injunction. But Caltrans’ timing made it seem to the plaintiffs that the department was playing fast and loose with the Constitution. The September 4 hands-off policy appeared just in time for a rush of flag raising on the anniversary of 9/11. But, after Brown and Courtney hung their protest signs, Caltrans changed lanes within two working days.

“If our clients had put up 20 American flags rather than 20 anti-war banners, we wouldn’t be having this discussion,” attorney Dana Scruggs says. “This is outrageous. It’s also monumentally stupid. The judge gives you an order, you take eight months to comply … and then as soon as the message is protesting war, you flip-flop? They’re twisting the judge’s order to violate our clients’ First Amendment rights even further.”

However, Caltrans spokesman Dennis Trujillo says it’s a matter of safety. He says the demonstrations led by Brown and Courtney as well as other demonstrations around the state alerted the department to the fact that roadside protests and banners hung from overpasses distract drivers. “It’s simply too dangerous,” he says.

Next week’s court hearing won’t focus on Caltrans’ vacillating policy. It will be Caltrans’ day to fight the temporary injunction altogether. In other words, the department will try to convince an appeals-court judge to allow its original American flags-only policy to stand, war protestors be damned.

Whatever the outcome of Caltrans’ appeal, Brown, Courtney and their huddle of lawyers seem to be in the fight for the long haul. After the appeal is heard, they plan to continue their court battle. “It’s not about us,” Courtney says. “Unfortunately, we fell into this position, and it’s our responsibility to see it through.”